Citation Nr: 0433657
Decision Date: 12/21/04 Archive Date: 12/29/04
DOCKET NO. 02-02 795 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder.
2. Entitlement to service connection for arthritis of the
left great toe, claimed secondary to service-connected
bilateral flat feet.
3. Entitlement to an increased (compensable) evaluation for
bilateral flat feet.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The veteran had active service from August 1984 to September
1986.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from regional office (RO) rating decisions
of June 2001, October 2002, and January 2003. In March 2004
the veteran appeared at a videoconference hearing held before
a Veterans Law Judge who is no longer with the Board, and,
thus, unable to participate in a decision. See 38 U.S.C.A.
§ 7107(c) (West 2002). In response to a letter from the
Board informing her of her right to have another hearing, she
said, in a statement received in November 2004, that she did
not want an additional hearing.
For reasons expressed below, the appeal is being remanded to
the RO, rather than the Appeals Management Center (AMC) in
Washington, DC.
REMAND
In a statement received in November 2004, the veteran
indicated that she had been given a 10 percent rating in
February 2004, apparently for her flat feet. The evidence of
record, including a February 2004 statement of the case on
that issue, does not reflect a compensable rating has been
granted, but this matter must be clarified. In addition, if
the veteran was in fact granted a 10 percent rating for flat
feet, the evidence upon which this grant was based must be
associated with the claims file. In this regard, a grant of
less than the maximum available rating does not terminate the
appeal, unless the veteran expressly states she is satisfied
with the assigned rating. See AB v. Brown, 6 Vet.App. 35, 38
(1993).
Because any evidence pertaining to the issue of an increased
rating for flat feet could potentially affect the issue of
service connection for arthritis of the left great toe
(claimed secondary, by aggravation, to bilateral flat feet),
appellate consideration of that issue must be deferred as
well.
With respect to the claim for service connection for a
psychiatric disability, service medical records show symptoms
in service including stress, and a depressed, weepy
appearance, although no chronic disability was diagnosed.
Again in March 1988, after service, she was seen for problems
with stress, and an adjustment disorder was diagnosed. In
1990, she was seen again, and this time dysthymia was
diagnosed. VA treatment records dated in 1990 also note a
history of major depression. In view of these factors, the
Board is of the opinion that she should be afforded an
examination, to determine whether she currently has a
psychiatric disability of service onset.
The appellant is hereby notified that it is the appellant's
responsibility to report for the examination and to cooperate
in the development of the case, and that the consequences of
failure to report for a VA examination without good cause may
include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655
(2004).
Finally, the RO must ensure that all required actions to
notify and to assist the claimant have been met. See 38
U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. § 3.159
(2004). In particular, the veteran must be requested to
provide any evidence in her possession that pertains to the
claims. 38 C.F.R. § 3.159(b)(1) (2004).
In view of the foregoing, the case is REMANDED to the RO for
the following:
1 With respect to all issues on appeal,
request the veteran to send VA copies of
any evidence relevant to her claims that
is in her possession. See 38 C.F.R.
§ 3.159(b).
2.Associate the records in any "dummy"
file that may have been created while the
claims file was at the Board, with the
claims file. If there is no evidence
that the veteran received a 10 percent
rating for her flat feet, as she
indicated in her letter received at the
Board in November 2004, notify the
veteran of that fact, and afford her an
opportunity to submit documentation of
her assertion. If the evidence does show
she was awarded a 10 percent rating,
process in accordance with established
procedures.
3. Schedule the veteran for a VA
psychiatric examination, to determine if
she has an acquired psychiatric
disability of service onset. The claims
file must be examined in connection with
the examination. The examiner should
provide a diagnosis for all psychiatric
disorders currently present (if any), and
provide an opinion as to whether any such
disorders are etiologically related to
symptoms shown in service. The complete
rationale for all conclusions reached
should be provided.
4. After assuring that there has been
compliance with the notice and duty to
assist requirements of the law
(38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R.
§ 3.159), readjudicate the claims on
appeal. If the claims are denied, issue
a supplemental statement of the case to
the appellant, and afford her an
opportunity to respond, before the case
is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of
2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651
(2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).